Paul Cannington v Triple R Corporation Pty Ltd T/A Triple R Corporation Pty Ltd
[2017] FWC 2772
•19 MAY 2017
| [2017] FWC 2772 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Paul Cannington
v
Triple R Corporation Pty Ltd T/A Triple R Corporation Pty Ltd
(U2016/15548)
DEPUTY PRESIDENT BOOTH | SYDNEY, 19 MAY 2017 |
Application for an unfair dismissal remedy
[1] On 29 December 2016 Mr Cannington lodged an application with the Fair Work Commission (the Commission) pursuant to s.394 of the Fair Work Act (the Act) for an unfair dismissal remedy in relation to the termination of his employment by Triple R Corporation (Triple R).
[2] Triple R has a jurisdictional objection to his application. Triple R say that it terminated Mr Cannington’s employment before the expiry of six months. That is, before the expiry of the probationary period and the minimum employment period under the Act.
[3] A conciliation occurred on 7 February 2017 but did not resolve the matter. I held a telephone mention on 3 April 2017 and directions in relation to the jurisdictional objection were set. The parties agreed that if no relevant factual conflicts were revealed in the submissions I would make my decision without a hearing.
[4] Submissions were received from Triple R on 6 April 2017, from Mr Cannington on 21 April 2017 and in reply from Triple R on 10 May 2017. No relevant factual errors were disclosed in the submissions. That being the case I wrote to the parties advising them that I thought it appropriate to make a decision based on their written submissions. The parties have not objected and this decision is therefore made on the papers.
[5] Section 382 of the Act provides that a person is not protected from unfair dismissal if they have not completed a period of employment with their employer of at least the minimum employment period.
[6] Section 382 of the Act reads as follows:
382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.
[7] The meaning of the minimum employment period is found in s. 383 of the Act as follows:
383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i) the time when the person is given notice of the dismissal;
(ii) immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.
[8] It is agreed that Triple R is not a small business employer. Accordingly the minimum employment period that applies to Mr Cannington is six months. Mr Cannington was a casual employee. It is agreed that his service counted towards his period of employment. What is in dispute is the length of that period of employment.
[9] Mr Cannington says that he was employed by Triple R from 10 June 2016 to 13 December 2016, a period of six months and four days. Triple R says that Mr Cannington was employed by them from 13 June 2016 to 9 December 2016, a period that is four days less than six months.
[10] Mr Cannington says he signed he signed a Letter of Offer and an Individual Agreement on 7 June 2016. Triple R agrees that he did so.
[11] In relation to his commencement date, the Letter of Offer stated “Your employment will commence on or before 13th June 2016 according to allocated shift roster”.
[12] Mr Cannington says that he was directed by Triple R to attend induction training on 10 June 2016 and that this was his commencement date. Triple R agrees that he was directed to attend induction training on 10 June 2016. Mr Cannington claimed payment for this day by text message, and points to provisions in the Individual Agreement that provide for payment for attendance at authorised and directed training. He does not contend that payment for attendance at induction training on 10 June 2016 was received. Triple R say that consistent with their usual practice they did not pay Mr Cannington for this day of induction training and attendance at induction training occurred prior to the commencement of employment.
[13] It is agreed that Mr Cannington’s first paid shift was 13 June 2013. Triple R says that this was when Mr Cannington commenced employment with Triple R.
[14] If Mr Cannington’s commencement date was 10 June 2016 then his minimum employment period would have been reached on 10 December 2016.
[15] If Mr Cannington’s commencement date was 13 June 2016 then his minimum employment period would have been reached on 13 December 2016.
[16] Triple R says that Mr Cannington was dismissed by Mr Farquhar, Operations Manager for Triple R, on 9 December 2016 by telephone, that he worked his last shift on this day and that this was the date his employment ceased.
[17] Mr Cannington’s statement says that he received a telephone call on 9 December 2016 from Mr Farquhar and he outlines the gist of the exchange as follows:
“Mr Farquhar said “We are not going to continue with your employment after today” or words to that affect.
I said “ok, why?”
Mr Farquhar said “We don’t think you are a fit for the company”
I said “Well ok” or something similar.”
[18] Although Mr Cannington says that he was rostered after 9 December 2016 it is agreed that he did not work any further shifts after 9 December 2016.
[19] Mr Cannington received a letter dated 9 December 2016 entitled Termination of Employment that read in part:
“We confirm that we have decided not to continue your employment beyond your probationary period. As a result, your employment will cease on Tuesday the 13th of December 2016”
[20] Mr Cannington says that this letter means that the for the purpose of calculating the minimum employment period, his period of employment ended on 13 December 2016.
[21] I consider that Mr Cannington commenced employment with Triple R on 13 June 2016. The induction training he attended was unpaid. I consider that the training was a precondition to his employment as it was a requirement to access the site where Triple R intended to deploy Mr Cannington. His first paid shift was 13 June 2016.
[22] I consider that Mr Cannington’s employment ceased when he was dismissed by Mr Farquhar on 9 December 2016. He was rostered for shifts after 9 December 2016 but as a result of his dismissal did not work these shifts.
[23] The letter of termination does state “your employment will cease on Tuesday the 13th of December 2016” but in fact the employment relationship ceased on 9 December 2016. Even if this letter means that the contract of employment ceased on 13 December 2016, it is the employment relationship, not the contract of employment, that is relevant to this application. 1
[24] Accordingly Mr Cannington was not employed for a period of at least six months as required by the Act.
[25] I note that even if I am wrong about the commencement date of Mr Cannington’s employment, and attendance at induction training on 10 June 2016 did constitute the commencement of employment, his period of employment was still less than 6 months.
[26] I order that his application is dismissed.
DEPUTY PRESIDENT
1 Saigian v Sanel Pty Ltd (1994) 54 IR 185 at 201-202; Mohazab v Dick Smith Electronics Pty Ltd (no. 2) (1995) 62 IR 200 at 205.
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